Congressional Democrats Plan To Sue Trump Over Violations Of The Emoluments Clause

By John Sexton

Politico reports House and Senate Democrats plan to sue President Trump over what they believe is an ongoing violation of the Constitution’s emoluments clause:

“We’ll be suing to stop his violations of the emoluments clause,” senior House Judiciary member Jerry Nadler (D-N.Y.) confirmed in an interview. The lawsuit won’t be filed until next week at the earliest but dozens of Democrats on both sides of the Capitol have already signed on in support, Nadler said…

Nadler said by his latest count a couple of weeks ago, 78 House Democrats and 25 Democratic senators had signed on in support of the lawsuit. The nonprofit Constitutional Accountability Center is leading the case, Nadler said.

This isn’t the first time someone has tried this. Back in January the progressive group Citizens for Responsibility and Ethics in Washington (CREW) filed a similar lawsuit with the help of a group of lawyers including Trump foe Laurence Tribe. In April the group expanded that lawsuit to try to address a problem it had establishing standing in the case. From the NY Times:

The amended complaint, to be filed on Tuesday in a federal court in the Southern District of New York, alleges that Mr. Trump has harmed an organization that represents more than 200 restaurants and nearly 25,000 employees. Its clients compete directly with restaurants that Mr. Trump owns or in which he has a financial interest, the new pleading alleges, and suffer from the revenue he reaps from his enterprises.

The revised complaint by Citizens for Responsibility and Ethics in Washington, or CREW, is an effort to address what some saw as a critical weakness in the group’s original lawsuit: the lack of a clear victim who could claim injuries resulting from Mr. Trump’s failure either to sell off his business holdings or to place them in a blind trust.

According to Rep. Nadler, the new Democratic lawsuit is similar to the CREW lawsuit with one crucial difference. He tells Politico, “Members of Congress we say have standing because the emoluments clause says without the permission of Congress, you can’t accept any gift, etc., etc., from a foreign state.” Nadler adds, “We are injured by being denied our right to vote on this, that’s our standing.”

It’s worth pointing out that lawyers working for Trump dispute that payments made to his hotel or restaurants represent violations of the emoluments clause. From a white paper put together by a law firm defending Trump:

The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.” So long as foreign governments pay fair-market-value prices, their business is not a “present” because they are receiving fair value as a part of the exchange. It clearly is not an “Office”10 or a “Title”11 from that government. These commentators therefore must rest their argument on the final category of prohibited benefit: “Emolument.”

As shown below, an emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office—then, as today, an “emolument” in legal usage was a payment or other benefit received as a consequence of discharging the duties of an office. Emoluments did not encompass all payments of any kind from any source, and would not have included revenues from providing standard hotel services to guests, as these services do not amount to the performance of an office, and therefore do not occur as a consequence of discharging the duties of an office.

The Constitution’s text shows that the word had this more limited meaning. Apart from the Foreign Emoluments Clause, the term emolument appears twice more in the Constitution, and both times refers to compensation associated with an office.

Trump’s attorney Sheri Dillon put it more simply, “Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It’s not an emolument.” So even if congressional Democrats have standing to sue, it’s far from clear they will succeed.